Chelsea Exchange Bank v. Munoz

Greenbaum, J.:

The answer and the defendant’s affidavit deny that the plaintiff is now the holder of the notes in suit and in addition set up a counterclaim based upon an agreement executed in the name of the plaintiff’s president, under circumstances set forth in defendant’s affidavit, from which it may be inferable that the president while ostensibly acting as an individual acted as the agent of the plaintiff.

The first question presented is whether rule 113 may be invoked where the answer contains a counterclaim. The learned Special Term justice ruled that the rule applied only to defenses…